Smith & Wesson lost its apocalypse opportunity – Nov. 17, 2010

In January, a Smith & Wesson sales executive was swept up in a massive FBI undercover investigation of bribery in the small arms industry and charged with violations of the Foreign Corrupt Practices Act. The sales executive allegedly attempted to bribe the representative of an African country that was taking bids for a $15 million deal to outfit that country’s presidential guard. The representative was an undercover FBI agent.

FCPA investigations have become a growth industry for the legal community, particularly those in the business of suing companies for shareholders; after filing a handful of lawsuits per year at the beginning of the decade, the Department of Justice now has about 240 such investigations underway. Win, lose or draw, they are expensive cases to sort out. In its earnings release this September, Smith & Wesson reported the investigation had already cost it a few million dollars and was hampering “international shipments” of its handguns.

Worse for shareholders is that nobody knows how expensive Smith & Wesson’s case will eventually become. Responding to analyst questions following the earnings release, CEO Golden said he couldn’t give any guidance on whether it would keep costing a few million bucks a quarter. And the company’s financials don’t paint a rosy picture were other shoes to drop.

A Smith & Wesson spokeswoman did not return requests for comment. But, while the company says it is cooperating fully with DOJ investigators and has not been charged with any violations, company filings note that this remains a possibility. “If the DOJ determines that we violated FCPA laws, or if our employee is convicted of FCPA violations, we may face sanctions, including significant civil and criminal penalties. In addition, we could be prevented from bidding on domestic military and government contracts and could risk debarment by the U.S. Department of State,” Smith & Wesson wrote in its most recent quarterly financial statement.

via Smith & Wesson lost its apocalypse opportunity – Nov. 17, 2010.

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Ministry of Justice consults on Bribery Act guidance – International Law Office

On September 14 2010 the Ministry of Justice opened a consultation on its draft adequate procedures guidance. The government is obliged to produce such guidance under Section 9 of the Bribery Act 2010 and has pledged to consult and publish a final version before the act comes into force in April 2011.

The ministry is seeking the views of businesses and other interested parties. In his introduction Kenneth Clarke, the lord chancellor and secretary of state for justice, states that:

“In deciding what bribery prevention measures best suit their particular circumstances, commercial organisations should be assisted by the guidance published under Section 9 of the Act. It is essential that any guidance the government publishes is informed by the wealth of knowledge, experience and expertise to be found outside government, in (for example) the business community and non-governmental organisations.”

The consultation documents include:

a questionnaire for interested parties comprising five questions;

draft guidance focusing on six key principles;

additional commentary on some specific issues, such as facilitation payments; and

five illustrative examples – which are not part of the guidance – focusing on key risk areas, such as hospitality.

via Ministry of Justice consults on Bribery Act guidance – International Law Office.

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Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery : Electronic Discovery Law

Today The Sedona Conference® made available its Commentary on Proportionality in Electronic Discovery.  The commentary (published as a “public comment version”) provides valuable insight and guidance on one of the hottest topics in e-discovery today.  Among other things, the publication identifies six Principles of Proportionality, intended to “provide a framework for the application of the doctrine of proportionality to all aspects of electronic discovery.”

via Hot Off the Press: The Sedona Conference® Commentary on Proportionality in Electronic Discovery : Electronic Discovery Law.

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UK Bribery Act broader than FCPA, but more guidelines needed – Risk.net

Firms in the UK will need more guidance on complying with the Bribery Act’s strict rules

The passing of the Bribery Act 2010 into UK law has created one of the toughest anti-corruption regimes in existence. Firms operating in the UK will no longer be allowed to make “facilitation payments”, which have often been thinly veiled bribes.

Previous UK anti-bribery legislation dated from the nineteenth century, whereas the new legislation goes beyond more modern laws such as the US Foreign Corrupt Practices Act (FCPA).

The FCPA was primarily aimed at targeting bribes to corrupt foreign government officials, whereas the scope of the UK’s Bribery Act more broadly targets corruption across the corporate gambit.

The UK Bribery Act allows unlimited fines against firms, while individual penalties are up to 10 years' imprisonment, compared with five years under the FCPA.

“All this bad activity has been illegal for a long time, but it’s the ability to prosecute companies and individuals that has been so difficult,” says Bob Hirth, vice-president and head of global internal audit at Protiviti, a financial services consultancy.

“One motive behind this Act was to provide for more effective prosecutions. It is broad and ambitious, but the devil is in the detail,” he says.

The Act requires systems and controls to be put in place to demonstrate compliance with the new regime. Compliance to the FCPA does not guarantee compliance to the Act.

via UK Bribery Act broader than FCPA, but more guidelines needed – Risk.net.

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Global Disclosures: Extracting the Risk | Westlaw Business

A chart of the major "big oil" companies
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BP’s ecological disaster in the Gulf of Mexico and the SEC’s recently issued guidance on climate change bring environmental disclosures and concerns to the fore. Yet in today’s global economy, natural resources are extracted all over the earth and environmental liabilities can arise anywhere and at any time. Even under the best of circumstances, extractive industries face particular risks when it comes to both environmental damage and climate change. In this year’s 20-F/40-F filings, from the largest players like Royal Dutch Shell and Vale to their smaller counterparts, companies in the oil, gas, and mining industries are showing that they are acutely aware of their potential environmental liabilities.

Thanks to dozens of comment letters and other concerted efforts by environmental activists, the SEC issued Commission Guidance Regarding Disclosure Related to Climate Change effective February 8, 2010. The release outlines commission views with respect to existing disclosure requirements as they apply to climate change matters. The focus is mainly on 10-K/10-Q filers, but the release does note, “the disclosure requirements applicable to domestic issuers under Regulation S-K that are most likely to require disclosure related to climate change have parallels under Form 20-F, although some of the requirements are not as prescriptive as the provisions applicable to domestic issuers.”

via Global Disclosures: Extracting the Risk.

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PDF: USDOJ’s Lay-Person’s Guide to the FCPA

INTRODUCTION

The 1988 Trade Act directed the Attorney General to provide guidance concerning theDepartment of Justice’s enforcement policy with respect to the Foreign Corrupt Practices Act of 1977 (“FCPA”), 15 U.S.C. §§ 78dd-1, et seq., to potential exporters and small businesses thatare unable to obtain specialized counsel on issues related to the FCPA. The guidance is limitedto responses to requests under the Department of Justice‘s Foreign Corrupt Practices Act Opinion Procedure (described below at p. 10) and to general explanations of complianceresponsibilities and potential liabilities under the FCPA. This brochure constitutes the Department of Justice’s general explanation of the FCPA.

Download (PDF, 42.02KB)

Courtesy USDOJ FCPA Web Site

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Podcast: Lessons on E-Discovery in Canada || ESIBytes

Canada has offered guidance to the U.S. on alternative healthcare systems and recently schooled us in Olympic Men’s Hockey. So it isn’t far fetched to talk about how Electronic Discovery is handled in Canada. This is a useful show for legal professionals who might litigate cases in Canada as well as legal professionals who want to hear ideas of what works from our neighbors up North. Their system is far less adverserial and yes there are more privacy laws which differ from U.S. laws. This podcast will include Susan Wortzman from Wortzman Nickle, a well known boutique law firm based in Toronto, Canada which focuses on Electronic Discovery. In addition, Judge Colin Campbell, a participant in the Sedona Conference and one of Canada’s most widely recognized speakers on electronic discovery is also a guest. Join us for this interesting show and to hear this talented panel.

via Lessons on E-Discovery in Canada || ESIBytes.

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Memos to United States Attorneys: Establishing Guidance for Prosecutors Regarding Criminal Discovery « USDOJ: Justice Blog

Last year, the Department of Justice convened a working group to explore the Department’s policies, practices, and training related to criminal case management and discovery. The group is made up of senior prosecutors from throughout the Department and from United States’ Attorney Offices, law enforcement representatives, and information technology professionals.

Today, in response to recommendations from this group, the Deputy Attorney General issued three memoranda regarding criminal discovery practices including a memorandum to all prosecutors containing guidance regarding criminal discovery that prosecutors should follow to help assure that they meet discovery obligations in future cases.

[continued] Memos to United States Attorneys: Establishing Guidance for Prosecutors Regarding Criminal Discovery « USDOJ: Justice Blog.

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